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Horizon Elder Law & Estate Planning Blog

Monday, December 30, 2024

How to Prepare for Incapacity Without Resorting to Conservatorship

Incapacity can occur at any time in life. If you have not started estate planning, now is the time to do so. In particular, it is in your interest to begin preparing for incapacity with tools that empower you to avoid a conservatorship. 

Our California estate planning attorney is here to help you create an estate plan tailored to your needs. This is your inside look at preparing for incapacity without a conservatorship.

Recognize the Challenges of Conservatorship

Conservatorships have merit, yet they are also flawed in several ways. A conservatorship empowers the court to select someone to oversee another’s affairs. The problem is that the judge might be subjective as opposed to objective, meaning the incapacitated individual might not be treated properly. 

Conservatorships have the potential to end badly as they tend to be costly and time-consuming. Moreover, a conservatorship involves the court, meaning it is on public record. There is no sense in making this personal matter public.

Recognize That Life is Unpredictable and Plan Accordingly

Life will inevitably throw curveballs at you. Illness, accidents, and health conditions such as dementia have the potential to leave you incapacitated. The inability to communicate wishes and make decisions is made all the worse without proper estate planning.

Instead of resorting to a court-appointed conservator, plan ahead with other legal tools. A spouse might not be necessary to make decisions on your behalf unless he or she has the legal tools necessary to do so. Such limited agency is the result of strict healthcare and privacy laws that ensure certain legal permissions are in place. 

Healthcare Directives, Power of Attorney, and More

A healthcare directive and power of attorney help spouses manage finances, obtain information from doctors, and make medical decisions. HIPAA authorization is another important legal tool that empowers a physician to disclose medical information to an individual you select. 

Keep in mind that health privacy laws might make it challenging for a family member or agent to obtain such information about your condition unless the HIPAA authorization is in place.

A durable power of attorney empowers one to appoint an individual who is trusted to handle financial affairs in the event that one cannot do so by himself or herself. A healthcare power of attorney empowers one to designate an individual to make healthcare decisions on behalf of the incapacitated party. 

Living Wills and Revocable Trusts

Our estate planning attorney will also help create your living will. Living wills are documents that detail wishes pertaining to medical treatment, including access to and the use of life support.

A revocable living trust also serves an important role in estate planning. The formation of a trust empowers one to plan for the distribution of assets after dying. A revocable living trust also guarantees someone in the trust is empowered to manage affairs without the court intervening.

Learn More During a Consultation With Our California Estate Planning Attorneys

The proper legal tools help plan for incapacitation and estate planning. Planning ahead also helps protect assets and plan for tax season. 

Learn more about trust agreements during a consultation with an experienced estate planning attorney in California. Contact us for a consult today.



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